Date: 19990811
Docket: T-1411-98
BETWEEN:
ERNST ZÜNDEL
Applicant
- and -
SABRINA CITRON, TORONTO MAYOR'S COMMITTEE ON COMMUNITY AND
RACE RELATIONS, THE ATTORNEY GENERAL OF CANADA, THE CANADIAN
HUMAN RIGHTS COMMISSION, CANADIAN HOLOCAUST REMEMBRANCE
ASSOCIATION, SIMON WIESENTHAL CENTRE, CANADIAN JEWISH
CONGRESS, LEAGUE FOR HUMAN RIGHTS OF B'NAI BRITH, CANADIAN
ASSOCIATION OF FREE EXPRESSION
Respondents
ASSESSMENT OF COSTS - REASONS
G.M. Smith,
Assessment Officer
[1] This matter stems from a request by the Canadian Human Rights Commission, hereinafter referred to as the "Commission", for an assessment of its costs flowing from an Order of this Court dated October 19, 1998 which dismissed with costs an interlocutory motion made by the applicant.
[2] The Commission's Bill of Costs was first presented on December 22, 1998. Counsel requested the assessment proceed by way of written representations, without the personal appearance of the parties. During the period of time set aside for the parties to file their written submissions, counsel for the Commission informed the Court that this matter had been settled. Unfortunately, that news was later retracted through advice received on or about March 17, 1999 from counsel for the Commission, as well as the applicant, to the effect that no settlement of the Commission's costs was in place and the matter should therefore continue.
[3] In the meanwhile, the Court proceeded on April 14, 1999 to dispose of the applicant's principal motion for judicial review (as well as two other judicial reviews in separate but related files) and awarded costs to the applicant. The respondent Simon Wiesenthal Centre launched an appeal against that Order on April 22, 1999 and a cross-appeal was filed by the Commission on May 12, 1999.
[4] In response to the Commission's request for assessment of its costs relating to the interlocutory motion, the applicant raised two objections in a letter dated April 21, 1999. First, since the award of costs on the motion did not provide for costs "in any event of the cause" and the applicant was eventually successful on its judicial review, counsel argued that those costs should now revert to the applicant. Second, the applicant submitted that the assessment should not go ahead in view of the appeals which remain outstanding.
[5] Not surprisingly, counsel for the Commission did not agree with the view taken by the applicant regarding entitlement of costs. As to the issue of prematurity, the Commission filed no further reply other than confirming its request the assessment proceed on the basis of the written representations already filed wherein counsel had suggested the assessment was needed to provide for set-off against the costs of the judicial review. No submissions were filed by any of the other parties to these proceedings although they were notified of the opportunity for doing so.
[6] By letter dated June 8, 1999, counsel for the applicant explained her position that, in any event of the issue regarding entitlement to costs on the interlocutory motion, the present assessment should not go ahead until the substantive question of the judicial review is finally resolved. This point, counsel submitted, is supported by an Ontario court decision in Banke Electronics Ltd. v. Olvan Tool & Die Inc. (1981), 32 O.R. (2d) 630 (Ont. H.C.) where Cory J. held that if an interlocutory motion is dismissed with costs, the costs are not to be taxed at once and made payable immediately thereafter. The long standing practice of the courts, Justice Cory stated, is that costs are to be taxed and paid only at the conclusion of a matter for two reasons: (1) a requirement that costs of an interlocutory application be made forthwith may prevent a meritorious action from coming to trial and (2) it is preferable if there is only one taxation of costs. The applicant before this Court further argued the view of Cory J. has been followed by this Court in Smith & Nephew Inc. v. Glen Oak Inc., [1995] F.C.J. No. 1604; (1995), 64 C.P.R. (3d) 452. Given these circumstances, counsel submitted, no assessment should proceed until the outstanding appeals are resolved.
[7] In a recent assessment before this Court in Nature's Path Foods Inc. v. Country Fresh Enterprises Inc. et al, (unreported) Court file no. T-2647-97, Stinson A.O., May 21, 1999, the Assessment Officer noted a number of cases to support the proposition that, except in special or extraordinary circumstances, the costs of an interlocutory proceeding should be assessed at the conclusion of a proceeding, together with all other costs, in order to have the benefit of the final conclusion concerning the substantive issues of the litigation:
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Waterfurnace Inc. v. 803943 Ontario Ltd. (1991), 50 F.T.R. 19 (F.C.T.D.) |
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Sim v. Canada (1996), 114 F.T.R. 98 (F.C.T.D. - Prothonotary) |
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affirmed on appeal [Q.L. 1996 F.C.J. No. 1050] (F.C.T.D.) |
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Pawliw v. Canada [Q.L. 1995 F.C.J. No. 835] (F.C.T.D.) |
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Casden v. Cooper Enterprises Ltd., [1991] 3 F.C. 281 (F.C.T.D.) |
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Coca-Cola Ltd. v. Pardhan, (1997) 75 C.P.R. (3d) 318 (F.C.T.D.) |
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Smith & Nephew Inc. v. Glen Oak Inc. (1995), 64 C.P.R. (3d) 452 (F.C.T.D.) |
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Kirkbi AG v. Ritvik Holdings Inc. (1998), 81 C.P.R. (3d) 289 (F.C.T.D.) |
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[8] In deciding as he did, the Assessment Officer distinguished the circumstances of the Nature's Path Foods assessment from another recent assessment in this Court in Mennes v. The Attorney General of Canada et al., (also unreported) Court file no. T-2019-98, Pilon A.O., May 4, 1999. There, the Assessment Officer concluded that an adjournment of an assessment for prematurity would effectively amount to a stay of proceedings. He considered jurisprudence suggesting that stays of proceedings are not automatic upon the filing of an appeal, the adjournment requested was not supported by the Rules and, in the absence of a motion to stay under section 50 of the Federal Court Act, the assessment should therefore proceed.
[9] The Mennes assessment follows an earlier case before this Court in Time Data Recorder International Ltd. v. Minister of National Revenue, (again unreported) Court file no. T-1707-90, May 12, 1994, Lamy T.O., where the Assessment Officer also held that the filing of an appeal does not, of and by itself, stay the entitlement of a party to the costs awarded it by judgment. I note that the Time Data Recorder assessment was later affirmed on review by a judge of this Court.
[10] I agree with the views taken in the Time Data Recorder and Mennes assessments (supra) that the filing of an appeal does not automatically stay proceedings before the Trial Division (of this Court). I should further point out that counsel's reliance on the Smith & Nephew Inc. case, at least as far as assessments are concerned, is countered by a later decision in AIC Ltd. v. Infinity Investment Counsel Ltd. 148 FTR 240 where this Court again explained:
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The plaintiff also relies on Smith and Nephew v. Glen Oak Inc. (1995), 64 C.P.R. (3d) 452, to argue that costs should not be awarded until after the appeal of the decision on the motion is determined. Smith and Nephew is an unusual case based on its particular facts. I do not think it is a case of general application insofar as the awarding of costs is concerned, as the general practice is not to await the outcome of an appeal before costs are dealt with in Trial Division proceedings. |
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On the other hand, I also favour the proposition expressed in the Banke Electronics and Nature's Path Foods cases (supra) that, at least in normal circumstances and subject of course to the Court's discretion that costs be made payable forthwith, the parties should avoid a multiplicity of assessments by awaiting the final resolution of the litigation. This not only paves a smoother road toward that final conclusion, but also avoids bridling the parties, and the Court, with additional costs resulting from assessments which may become varied, or even reversed, by later rulings of the Court affecting costs between the parties.
[11] This is not to say, however, that conditions might not exist to warrant proceeding with an assessment at an earlier stage. In the Nature's Path Foods Inc. case (supra), for example, the assessment officer pointed out that "costs of an interlocutory event may still be assessed and be made payable forthwith, but the Court must first make a finding of exceptional, frivolous or vexatious circumstances." As I've already noted, this is usually demonstrated by an order directing that costs be made "payable forthwith" or by some other expression of the Court's view that one or other of the parties' costs should be recovered without delay. But such is not the case here.
[12] I further appreciate that the mere existence of an appeal does not itself bode a necessarily ominous fate for either the decision being challenged nor, for that matter, the proceedings as a whole in the Court below. Here, the Court saw fit to award the costs of the applicant's failed motion to the Commission and, contrary to counsel's current argument that those costs should now revert to the applicant, the assessment cannot change that award (see IBM Canada v. Xerox of Canada [1977] 1 F.C. 181).
[13] Nevertheless, the argument presented by applicant's counsel to support its preliminary objection of prematurity is persuasive against the Commission's counter-argument that this assessment should proceed in order to allow for set-off against the costs in the judicial review, for which an assessment has not even been requested. In the particular circumstances of the present case, I am not convinced that this assessment should proceed in the face of the practicality of awaiting an assessment upon the final resolution of the outstanding appeals. I therefore decline to do so and will issue a Certificate stating that the applicant's objection to an assessment of the Commission's Bill of Costs relating to the interlocutory motion is allowed.
(signed: Gregory M. Smith)
Gregory M. Smith
Assessment Officer
Ottawa, Ontario
August 11, 1999
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS OF RECORD
Docket: T-1411-98
ERNST ZÜNDEL
Applicant
- and -
SABRINA CITRON, TORONTO MAYOR'S COMMITTEE ON COMMUNITY AND
RACE RELATIONS, THE ATTORNEY GENERAL OF CANADA, THE CANADIAN
HUMAN RIGHTS COMMISSION, CANADIAN HOLOCAUST REMEMBRANCE
ASSOCIATION, SIMON WIESENTHAL CENTRE, CANADIAN JEWISH
CONGRESS, LEAGUE FOR HUMAN RIGHTS OF B'NAI BRITH, CANADIAN
ASSOCIATION OF FREE EXPRESSION
Respondents
ASSESSMENT IN WRITING WITHOUT PERSONAL APPEARANCE OF PARTIES
- REASONS BY G.M. SMITH, ASSESSMENT OFFICER
DATE OF REASONS: August 11, 1999
APPEARANCES:
Ms. Barbara Kulaszka for the Applicant
| Mr. René Duval for the Respondent, The Canadian Human Rights Commission |
| No one appearing for the Respondents, Sabrina Citron and the Canadian Holocaust Remembrance Association, Toronto Mayor's Committee on Community and Race Relations, Attorney General of Canada, Simon Wiesenthal Centre, Canadian Jewish Congress, League for Human Rights of B'Nai Brith, and the Canadian Association for Free Expression |
SOLICITORS OF RECORD:
Barbara Kulaszka
Barrister & Solicitor
Brighton, Ontario
Douglas Christie
Barrister & Solicitor
Victoria, British Columbia for the Applicant
Tory Tory DesLauriers & Bennington
Barristers & Solicitors
| Toronto, Ontario for the Respondents, Sabrina Citron and the Canadian Holocaust Remembrance Association |
René Duval
Canadian Human Rights Commission
| Ottawa, Ontario for the Respondent, Canadian Human Rights Commission |
Office of the City Solicitor
| Toronto, Ontario for the Respondent, Toronto Mayor's Committee on Community and Race Relations |
Blake Cassels & Graydon
Barristers & Solicitors
| Toronto, Ontario for the Respondent, Canadian Jewish Congress |
Bennet Jone Verchere
Barristers & Solicitors
| Toronto, Ontario for the Respondent, Simon Wiesenthal Centre |
Morris Rosenberg
Deputy Attorney General of Canada
| Ottawa, Ontario for the Respondent, Attorney General of Canada |
Dale Streiman & Kurz
Barristers & Solicitors
| Brampton, Ontario for the Respondent, League for Human Rights of B'Nai Brith |
Paul Fromm
Canadian Association for
Free Expression
| Mississauga, Ontario for the Respondent, Canadian Association for Free Expression |
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